concurring in part and dissenting in part.
I concur in that portion of the majority opinion that affirms Appellant’s convictions and reverses his sentences because of the introduction of inaccurate parole eligibility evidence. However, I dissent from the dicta in the opinion that purports to amend by judicial fiat two provisions of the Kentucky Penal Code, viz: KRS 532.055(2) and KRS 532.110(1).
KRS 532.055(2) provides, inter alia:
*583The jury shall recommend whether the sentences shall be served concurrently or consecutively.
Similarly, KRS 532.110(1) provides, inter alia:
[Mjultiple sentences shall run concurrently or consecutively as the court shall determine at the time of sentencing except ....
The majority opinion would amend (if it were in a holding instead of dicta) each of these statutes by adding after the phrase, “concurrently or consecutively,” a new phrase, “in whole or in part,” op. at 573, 580 n. 22, and by suggesting that it was error not to inform the jury “of the full extent of its power to recommend that sentences run partially concurrently and partially consecutively.” Id. at 581. It should be noted at the outset that this proposition was not raised by either party and is irrelevant to a decision on the merits of any issue that was raised and decided in this case. And, as will be discussed, infra, it is also an unnecessary exercise in immateriality.
The majority’s dicta asserts that a jury should be instructed that it has the authority to piecemeal its “concurrent or consecutive” recommendation, an authorization not contained in KRS 532.055(2), the only source of a jury’s authority to make any recommendation at all with respect to concurrent or consecutive sentences. Suffice it to say that a jury instruction in a criminal case must be stated within the framework of the authorizing statute. McGuire v. Commonwealth, Ky., 885 S.W.2d 931, 936 (1994). The proposed instruction not only is unauthorized by the plain language of KRS 532.055(2), it is also contrary to the specimen instruction and verdict form recently approved by a majority of this Court (including the author of today’s majority opinion) in Commonwealth v. Pelfrey, Ky., 998 S.W.2d 460, 462 (1999).
Although not specifically articulated therein, the majority opinion also implies that KRS 532.110(1) authorizes a sentencing judge to piecemeal the imposition of concurrent or consecutive sentences (for otherwise what would be the point in authorizing a jury to recommend such a procedure?). Perhaps the phrase, “as the court shall determine,” in KRS 532.110(1) could be construed to confer that authority — but it would be a stretch. It would suffice to say that the statute has never been so construed and that the issue is not presented by the facts of this case.
Nevertheless, subject to the constitutional proscriptions against excessive fines and cruel and unusual punishments, U.S. Const. amend. VIII, Ky. Const. § 17, it is elementary that the sentence to be imposed for a criminal offense is purely a matter of legislative prerogative. Brown v. Commonwealth, Ky., 818 S.W.2d 600 (1991) (citing Rummel v. Estelle, 445 U.S. 263, 275-76, 284, 100 S.Ct. 1133, 1140, 1144, 63 L.Ed.2d 382 (1980) and Workman v. Commonwealth, Ky., 429 S.W.2d 374, 377 (1968)). See also Hampton v. Commonwealth, Ky., 666 S.W.2d 737, 741 (1984) (“[t]he sentence must conform to the limitations of the statute ... ”). Any common law prerogative previously afforded the judiciary with respect to sentencing is abrogated once the legislature speaks to the issue. Bentley v. Commonwealth, Ky., 269 S.W.2d 253, 255 (1954). We have repeatedly recognized that this legislative prerogative extends to determinations of whether sentences should run concurrently or consecutively. E.g., Moore v. Commonwealth, Ky., 990 S.W.2d 618, 620 (1999) (KRS 533.060(3) precludes ordering a sentence for an offense committed while awaiting trial to run concurrently with the offense for which the defendant was awaiting trial); Gaither v. Commonwealth, Ky., 963 S.W.2d 621, 622 (1997) (KRS *584532.110(4) precludes ordering a sentence for a conviction of escape to run concurrently with any other sentence); Devore v. Commomuealth, Ky., 662 S.W.2d 829, 831 (1984) (KRS 533.060(2) precludes ordering a sentence for a conviction of an offense committed while on parole to run concurrently with any other sentence); Hardy v. Commomuealth, Ky., 590 S.W.2d 879 (1979) (KRS 532.110(1)(b) precludes ordering two or more definite sentences to run consecutively). If the legislature had intended that sentences should run concurrently or consecutively “in whole or in part,” it would have been a simple matter to have said so.
Finally, this whole issue is an exercise in immateriality, for authorizing the jury to piecemeal its recommendation will have no practical effect on this or any other criminal case. The maximum aggregate enhanced sentences for the offenses of which Appellant was convicted is twenty years, KRS 582.110(1)(e), KRS 532.080(6)(b), and the minimum is ten years (ten and ten served concurrently). Thus, imposition of consecutive sentences can only occur under KRS 532.110(1), as written, if the jury fixes the sentence for each conviction at ten years. But if the desired sentence is more than ten but less than twenty years, that sentence can be imposed within the framework of the existing statutory scheme by simply imposing a sentence of, e.g., fifteen years for each offense and ordering the sentences to be served concurrently. Nothing further is accomplished by, e.g., ordering five years of a ten year sentence imposed for one offense to run concurrently and the remaining five years to run consecutively with the ten year sentence imposed for the other offense. In other words, sentences for multiple offenses can be imposed in such a way as to reach the desired aggregate sentence without resort to judicial amendment of the statutory scheme. Perhaps, the recognition of that fact is one reason why the legislature did not include the phrase, “in whole or in part,” in either KRS 532.055(2) or KRS 532.110(1).
Accordingly, I concur in the holdings of the majority opinion but dissent from its erroneous and unnecessary dicta.
GRAVES and WINTERSHEIMER, JJ., join this opinion, concurring in part and dissenting in part.